Dalewitz v. The Procter & Gamble Company
- Nelson Roman
- 7:22-cv-07323
- U.S. District Court · Southern District of New York
- 8
In Dalewitz v. The Procter & Gamble Company, Judge Roman granted dismissal of claims alleging misleading Oral-B Glide marketing but allowed amendment.
Alan Dalewitz and the proposed class members he sought to represent; The Procter & Gamble Company was the defendant.
What happened
In Dalewitz v. The Procter & Gamble Company, Alan Dalewitz brought a proposed class action claiming that Procter & Gamble misleadingly marketed Oral-B Glide dental floss as part of its “Pro-Health” line. He alleged violations of New York’s consumer-protection laws and fraud, based on claims that the floss was associated with potentially harmful per- and polyfluoroalkyl substances, or PFAS.
The court ruled that Dalewitz had not provided enough facts to plausibly show that the product contained PFAS, that specific PFAS chemicals were present, or that the chemicals could reach consumers and cause harm. The court said that a published study and Dalewitz’s own testing detected fluorine used as a proxy for PFAS, but neither established the presence of PFAS itself. The court also found the testing allegations unsubstantiated.
Judge Nelson S. Roman granted Procter & Gamble’s motion to dismiss. The court dismissed the New York consumer-protection claims and fraud claim without prejudice, and granted Dalewitz leave to file an amended complaint by October 23, 2023. The order stated that claims dismissed without prejudice would be deemed dismissed with prejudice if he did not timely amend.
The detailed version
- Dalewitz v. The Procter & Gamble Company · No. 7:22-cv-07323
- Nelson Roman
- Sept. 22, 2023
Background
Alan Dalewitz filed a proposed class action against The Procter & Gamble Company concerning Oral-B Glide dental floss. He alleged that the product was marketed in a misleading way because it was included in Procter & Gamble’s “Pro-Health” product line while allegedly being associated with per- and polyfluoroalkyl substances (PFAS), a group of synthetic chemicals. His claims arose under Sections 349 and 350 of New York’s General Business Law and under New York fraud law.
Dalewitz alleged that a 2019 study associated two particular chemicals, PTFE and PFHxS, with Oral-B Glide products and detected fluorine, which can serve as a proxy for PFAS. He also alleged that his own testing detected organic fluorine, described as a more reliable proxy. He claimed that he would not have bought the product, or would not have bought it on the same terms, had he known about the alleged PFAS association.
Rule and issues
Procter & Gamble moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. For the New York consumer-protection claims, the court required plausible allegations that Procter & Gamble engaged in consumer-oriented conduct that was materially misleading and caused injury. The fraud claim also required a material false statement or omission, knowledge of its falsity, an intent to deceive, reasonable reliance, and resulting damage.
Court’s reasoning
The court concluded that Dalewitz had not plausibly alleged that Oral-B Glide actually contained PFAS or caused harm to consumers. The court explained that the study and Dalewitz’s test detected fluorine proxies, but did not identify PFAS in the product or identify particular PFAS chemicals among the thousands of possible substances in that group. The court also found that Dalewitz had not plausibly alleged that PFAS could migrate from the floss into a consumer’s saliva or onto the consumer’s hands and thereby contribute to the consumer’s bodily PFAS level and cause harm.
The court identified the lack of support for Dalewitz’s testing as an additional basis for dismissal. It stated that any amended complaint should provide information about the testing method, the date, time, and place of testing, and who conducted it. Because the court found that the alleged product composition and resulting harm were not plausibly established, it also found that Dalewitz had not plausibly alleged a material misrepresentation or omission for purposes of his fraud claim.
Disposition
The court granted Procter & Gamble’s motion to dismiss. It dismissed Dalewitz’s New York General Business Law claims and fraud claim without prejudice and granted him leave to file an amended complaint by October 23, 2023. Procter & Gamble was directed to answer or seek permission to file another motion by November 13, 2023. The order stated that claims dismissed without prejudice would be deemed dismissed with prejudice if Dalewitz did not timely amend.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.